Health Care Power of Attorney vs. Living Will

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 4, 2026. Last reviewed October 4, 2026

The two documents are confused because they live in the same folder and are signed on the same day. The difference is who speaks. Illinois describes the power of attorney as a way to delegate the decision making power to a trusted agent and be sure that the agent's power to make personal and health care decisions for the principal will be effective to the same extent as though made by the principal (755 ILCS 45/4-1). It describes the living will as the right of a person to make a written declaration instructing his or her physician to withhold or withdraw death delaying procedures in the event of a terminal condition (755 ILCS 35/1). Ohio draws the same line: a durable power of attorney for health care authorizes an attorney in fact to make health care decisions for the principal (Ohio Rev. Code 1337.12(A)(1)), while a declaration governs the use or continuation, or the withholding or withdrawal, of life-sustaining treatment (section 2133.02(A)(1)). One is a person; the other is a set of instructions.

What a health care power of attorney does

Illinois states the breadth of the delegation first. The health care powers that may be delegated to an agent include, without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual (755 ILCS 45/4-3), and health care means any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient's physical or mental health or personal care (section 4-4(b)). The statutory short form spells out the powers: to consent to, refuse, or withdraw consent to any and all types of medical care, treatment, or procedures, including any medication program, surgical procedures, life-sustaining treatment, or provision of food and fluids; to admit the principal to or discharge the principal from hospitals, nursing facilities and other institutions, with the same right to visit as a spouse or adult child; to contract for health care services in the principal's name and bind the principal to pay, without personal liability for the agent; to examine, copy and consent to disclosure of the principal's medical records; and to direct an autopsy, make an anatomical gift and direct the disposition of the principal's remains (section 4-10(c)(1) to (5)). Illinois adds that a health care agency may extend beyond the principal's death if necessary to permit anatomical gift, autopsy, disposition of remains, or access to medical records (section 4-3).

Ohio grants the same breadth and then fences it. Subject to any specific limitations in the instrument, the attorney in fact may make health care decisions for the principal to the same extent as the principal could make those decisions if the principal had the capacity to do so, and in doing so shall act consistently with the desires of the principal or, if the desires of the principal are unknown, in the best interest of the principal (Ohio Rev. Code 1337.13(A)(1)). The fences are specific. The attorney in fact does not have authority to refuse or withdraw informed consent to life-sustaining treatment unless the principal is in a terminal condition or in a permanently unconscious state and the physicians' findings the section requires have been made (section 1337.13(B)(1)); does not have authority to refuse health care necessary to provide comfort care (section 1337.13(C)); and does not have authority to refuse artificially administered nutrition or hydration unless the principal is in one of those two states, two physicians find that nutrition or hydration will not or no longer will serve to provide comfort or alleviate pain, and, for a permanently unconscious principal, the principal authorized that decision in the document itself by a conspicuous statement with the principal's initials or signature beside it (section 1337.13(E)). Ohio defines the two states precisely: a terminal condition is an irreversible, incurable, and untreatable condition from which there can be no recovery and death is likely to occur within a relatively short time if life-sustaining treatment is not administered, and a permanently unconscious state is one of irreversible unawareness of one's being and environment with total loss of cerebral cortical functioning, each determined by the attending physician and one other physician who has examined the principal (section 1337.11(BB) and (V)).

Illinois gives the agent a standard of conduct rather than a list of fences. The agent is under no duty to exercise granted powers, but when granted powers are exercised, the agent is required to use due care to act for the benefit of the principal in accordance with the terms of the statutory health care power and is liable for negligent exercise; the agent may not delegate authority to make health care decisions (755 ILCS 45/4-10(c)). The form lets the principal add specific limitations and offers two optional statements of wishes, one that the quality of my life is more important than the length of my life and one that staying alive is more important to me, no matter how sick I am, as a guide for the agent (section 4-10(b)). An agent who in good faith acts with due care for the benefit of the patient and in accordance with the terms of the agency is not liable for the action or inaction (section 4-8(d)).

Who may be the agent

The person treating you cannot also decide for you. In Illinois neither the attending physician nor any other health care provider or health care professional may act as agent under a health care agency, though a person who is not administering health care to the patient may serve even if licensed to practice (755 ILCS 45/4-5), and a health care agent must be at least 18 years old (section 4-4(e-5)). In Ohio any competent adult may be named except the attending physician and an administrator of any nursing home in which the principal is receiving care, and except employees or agents of the attending physician or of a health care facility treating the principal unless they are related to the principal by blood, marriage, or adoption or are members of the same religious order (Ohio Rev. Code 1337.12(A)(2)). The Illinois form provides for successor agents who serve one at a time in the order listed (755 ILCS 45/4-10(b)), and Ohio's statute recognizes an alternate attorney in fact named in the instrument (Ohio Rev. Code 1337.12(B)). Both documents can also nominate a guardian in case a court ever has to appoint one: the Illinois form lets the principal nominate the agent, whom the court then appoints without bond if it decides a guardian is needed (755 ILCS 45/4-10(b) and (e)), and an Ohio principal may nominate a guardian of the principal's person, estate, or both (Ohio Rev. Code 1337.12(E)(1)).

When the agent's authority begins

This is where the two documents are most often misunderstood, and it matters for the HIPAA authorization as well. Ohio's rule is fixed: the attorney in fact shall make health care decisions for the principal only if the attending physician of the principal determines that the principal has lost the capacity to make informed health care decisions (Ohio Rev. Code 1337.13(A)(1)), and the notice that must appear on every printed Ohio form tells the signer that this power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself (section 1337.17). What the Ohio document can do immediately is open the records: it may authorize the attorney in fact, commencing immediately upon the execution of the instrument and regardless of whether the principal has lost capacity, to obtain information concerning the principal's health, including protected health information as defined in 45 CFR 160.103 (sections 1337.12(A)(1) and 1337.13(A)(1)).

Illinois lets the principal choose by checking one of three boxes on the statutory form: the agent makes decisions only when the principal cannot, as determined by the treating physicians, which is the default if no box is checked; the same, but starting now the agent has complete access to the principal's medical and mental health records and may communicate with the principal's physicians; or the agent may make decisions starting now and continuing after the principal can no longer make them, while the principal keeps the right to decide for himself or herself (755 ILCS 45/4-10(b)). A physician may determine that the principal is unable to make health care decisions only if the principal lacks decisional capacity as defined in the Health Care Surrogate Act (section 4-10(d)). Whenever a provider believes a patient may lack capacity to give informed consent to health care the provider deems necessary, the provider shall consult with any available health care agent known to the provider who then has power to act (section 4-7(a)).

What a living will does

A living will is narrower in every dimension. Illinois lets an adult of sound mind execute a document directing that if he is suffering from a terminal condition, then death delaying procedures shall not be utilized for the prolongation of his life (755 ILCS 35/3(a)). A terminal condition is an incurable and irreversible condition which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process, and a death delaying procedure is any medical procedure or intervention which, when applied to a qualified patient, in the judgement of the attending physician would serve only to postpone the moment of death, such as assisted ventilation, artificial kidney treatments, intravenous feeding or medication, blood transfusions and tube feeding (section 35/2(d) and (h)). Two limits are built in: the Act does not affect the responsibility to provide treatment for a patient's comfort care or alleviation of pain, and nutrition and hydration shall not be withdrawn or withheld if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition (section 35/2(d)). The Illinois form is a refusal only; it directs that procedures which would only prolong the dying process be withheld or withdrawn, and that I be permitted to die naturally with comfort care (section 35/3(e)).

Ohio's declaration covers two situations instead of one and can point in either direction. An adult of sound mind may execute a declaration governing the use or continuation, or the withholding or withdrawal, of life-sustaining treatment, and the declaration must say whether it applies in a terminal condition, in a permanently unconscious state, or in either, defining those terms consistently with the statute (Ohio Rev. Code 2133.02(A)(1) and (2)). It may name one or more persons the attending physician must notify before life-sustaining treatment is withheld or withdrawn (section 2133.02(A)(1)). As in the power of attorney, a declarant who wants artificially administered nutrition or hydration withheld in a permanently unconscious state must say so in a conspicuous statement, or check a box beside one on a printed form, and initial or sign next to it (section 2133.02(A)(3)). A printed form may be sold for use by adults who are not advised by an attorney, but it shall not be used as an instrument for granting any other type of authority or for making any other type of designation (section 2133.07(B)), which is the statute's way of saying a living will is not a power of attorney.

When a living will takes effect

A living will does nothing until a physician makes findings. Illinois ties it to the qualified patient: a patient who has executed a declaration and who has been diagnosed and verified in writing to be afflicted with a terminal condition by his or her attending physician who has personally examined the patient (755 ILCS 35/2(g)). Since January 1, 2026, the Act says it in one place: a declaration becomes operative when it has been validly executed, has not been revoked, the patient is unable to give directions regarding the use of life-sustaining or death delaying procedures, and the patient is a qualified patient, and an operative and unrevoked declaration continues in effect until revoked (755 ILCS 35/9.5, added by Public Act 104-0378). A qualified patient has the right to make decisions regarding death delaying procedures as long as he or she is able to do so (section 35/2(g)).

Ohio requires more findings. A declaration becomes operative when it is communicated to the attending physician, the attending physician and one other physician who examines the declarant determine that the declarant is in a terminal condition or in a permanently unconscious state, whichever is addressed in the declaration, and the attending physician determines that the declarant no longer is able to make informed decisions regarding life-sustaining treatment and that there is no reasonable possibility that the declarant will regain that capacity (Ohio Rev. Code 2133.03(A)(1) and (3)). As long as a qualified patient is able to make informed decisions regarding life-sustaining treatment, the qualified patient may continue to do so (section 2133.06(A)). In both states, then, the document never overrides a patient who can still speak.

Side by side

How each is signed in Illinois

The Illinois health care power of attorney takes one witness. Every health care agency shall bear the signature of a witness to the signing of the agency, no witness may be under 18 years of age, and the following may not witness: the principal's attending physician, advanced practice registered nurse, physician assistant, dentist, podiatric physician, optometrist or psychologist, or a relative of one of them; an owner or operator, or a relative of an owner or operator, of a health care facility in which the principal is a patient or resident; a parent, sibling or descendant, or the spouse of one, of either the principal or any agent or successor agent; and an agent or successor agent for health care (755 ILCS 45/4-5.1(a)). The witness statement printed on the statutory form repeats those exclusions and lets the witness attest either that I saw the principal sign this document or that the principal told me that the signature or mark on the principal signature line is his or hers (section 4-10(b)). The form's own instructions are short: sign the form in front of a witness, ask the witness to sign it too, there is no need to have the form notarized, give a copy to your agent and to each of your successor agents, and give another copy to your physician (section 4-10(b)). Signatures may be written or electronic (section 4-10(a)). A nonstatutory form must be executed by the principal, designate the agent and the agent's powers and comply with section 4-5, but need not be witnessed (section 4-10(a)); the statutory form is the one that promises providers immunity for relying on it (sections 4-1 and 4-8).

The Illinois living will takes two witnesses. The declaration must be signed by the declarant, or another at the declarant's direction, and witnessed by 2 individuals 18 years of age or older (755 ILCS 35/3(b)); the section does not mention a notary. The suggested form's witness clause has each witness state that the declarant is personally known to me and I believe him or her to be of sound mind, that the witness saw the declarant sign or heard the declarant acknowledge the signature, and that the witness is not entitled to any portion of the estate of the declarant under intestacy or any will and is not directly financially responsible for the declarant's medical care (section 35/3(e)). The Act defines the declaration as a witnessed document in writing, in a hard copy or electronic format (section 35/2(b)). If the patient is able, it is the patient's responsibility to notify the attending physician of the declaration, provide a copy, and ask whether the physician is willing to comply; a physician who is notified shall make the declaration part of the medical record (section 35/3(d)).

How each is signed in Ohio

Ohio uses one signing rule for both documents and offers a choice between witnesses and a notary. A durable power of attorney for health care shall be signed at the end of the instrument by the principal, shall state the date of its execution, and shall be witnessed in accordance with division (B) or acknowledged by the principal in accordance with division (C) (Ohio Rev. Code 1337.12(A)(1)(a) and (b)). If witnessed, it needs at least two individuals who are adults and who are not ineligible; any person related to the principal by blood, marriage, or adoption, any person designated as the attorney in fact or alternate attorney in fact, the attending physician of the principal, and the administrator of any nursing home in which the principal is receiving care are ineligible. The principal signs, or acknowledges the signature, at the end of the instrument in the presence of each witness, and each witness then signs after the principal and by doing so attests to the witness's belief that the principal appears to be of sound mind and not under or subject to duress, fraud, or undue influence (section 1337.12(B)). If acknowledged instead, the principal signs before a notary public, who makes the certification described in section 147.53 of the Revised Code and also attests that the principal appears to be of sound mind and not under duress, fraud, or undue influence (section 1337.12(C)).

The Ohio declaration follows the same pattern: signed at the end by the declarant or by another individual at the declarant's direction, dated, and either witnessed or acknowledged (Ohio Rev. Code 2133.02(A)(1)). The two witnesses must be adults who are not related to the declarant by blood, marriage, or adoption, who are not the attending physician of the declarant, and who are not the administrator of any nursing home in which the declarant is receiving care, and each attests to the same belief about sound mind and the absence of duress, fraud or undue influence (section 2133.02(B)(1)); the notary alternative is identical to the one for the power of attorney (section 2133.02(B)(2)). An attending physician who is furnished a copy shall make it a part of the declarant's medical record (section 2133.02(C)). Ohio adds that a durable power of attorney for health care shall not expire unless the principal specifies an expiration date, and even then it continues while the principal lacks capacity (section 1337.12(A)(3)).

How the two documents work together

The example states resolve the overlap in opposite ways, which is why the question has no national answer. Illinois puts the person ahead of the paper. If the principal has a living will, the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal (755 ILCS 45/4-11). A 2026 amendment wrote the same rule into the Living Will Act: a declaration is not operative as long as an agent is available who is authorized by a health care agency to make decisions concerning life-sustaining or death delaying procedures, and nothing in the Act may impair or supersede the authority of such an agent (755 ILCS 35/3.5, added by Public Act 104-0378, effective January 1, 2026). In Illinois the living will is the fallback for the day no agent can be reached, and the statutory form says as much: if there is no one you trust to be your agent, you can complete a living will (755 ILCS 45/4-10(b)).

Ohio puts the paper ahead of the person on the one subject the paper covers. If a declarant has both a valid durable power of attorney for health care and a valid declaration, the declaration supersedes the durable power of attorney for health care to the extent that the provisions of the documents would conflict if the declarant should be in a terminal condition or in a permanently unconscious state (Ohio Rev. Code 2133.03(B)(2)), and the power of attorney statute points to that rule (section 1337.12(D)(1)). Outside those two states of health, the attorney in fact decides. The practical lesson for both states is the same: the two documents should say the same thing, and the agent should have read the living will. The Illinois form's notice asks the signer to make sure that your agent agrees to honor the wishes expressed in your advance directive (755 ILCS 45/4-10(b)).

Without either document, decisions fall to whoever state law lists. Ohio's list for withholding or withdrawing life-sustaining treatment from an adult who has neither a declaration nor a durable power of attorney for health care runs from a guardian to the spouse, then a majority of adult children, then parents, then a majority of adult siblings, then the nearest adult relative, and if a class is equally divided, no consent can be given (Ohio Rev. Code 2133.08(A)(1)(b), (B) and (C)(1)). Illinois's form warns that the people listed by its surrogate law may not be who you would want, may disagree with one another, and under some circumstances may not be able to make the same kinds of decisions that an agent can make (755 ILCS 45/4-10(b)).

Revoking or changing either document

Both documents can be revoked at any time regardless of the signer's condition, and neither state requires a lawyer or a notary to do it. In Illinois a health care agency may be revoked by being obliterated, burnt, torn, or otherwise destroyed or defaced in a manner indicating intention to revoke; by a written revocation signed and dated by the principal; by an oral or any other expression of the intent to revoke in the presence of a witness 18 years of age or older who signs and dates a writing confirming it; or, for an electronic agency, by deleting it (755 ILCS 45/4-6(a)). Illinois offers a safety catch: a principal may elect a 30-day delay of the revocation, so that a revocation spoken during a crisis takes effect 30 days after the principal communicates the intent to revoke (section 4-6(a-5) and the delayed revocation boxes on the form in section 4-10(b)). An agency may be amended at any time by a signed and dated written amendment (section 4-6(b)), and signing the statutory form revokes all previous powers of attorney for health care (section 4-10(b)). The Illinois living will is revoked by the same four methods, and the revocation is effective upon communication to the attending physician by the declarant or by another who witnessed the revocation (755 ILCS 35/5(a) and (b)).

Ohio is shorter. A principal may revoke a durable power of attorney for health care, or the designation of the attorney in fact under it, at any time and in any manner; the revocation is effective when the principal expresses an intention to revoke, except that if the attending physician was made aware of the document, the revocation is effective when communicated to the attending physician by the principal, a witness to the revocation, or other health care personnel (Ohio Rev. Code 1337.14(A)). Unless the instrument provides otherwise, a valid durable power of attorney for health care revokes a prior one (section 1337.14(C)). The declaration follows the same rule, and unless it provides otherwise a declaration is revoked by a subsequent declaration (section 2133.04(A) and (C)). In both states the physician who learns of a revocation records it in the medical record (755 ILCS 35/5(b); Ohio Rev. Code 1337.14(B) and 2133.04(B)). Because a new document replaces the old one by operation of law in both states, the practical step after signing a new set is to collect and destroy the old copies and give the new ones to the agent and the physician.

How they fit with a living trust and the rest of the plan

An estate plan divides your affairs by subject. The living trust holds property and names a successor trustee to manage it if you cannot; the durable power of attorney covers money and property outside the trust; the health care power of attorney covers your body; the living will states your end-of-life wishes; and the HIPAA authorization lets the people you name see your medical information. The health care documents never touch property, with one small exception: the Illinois agent may contract for health care services in the principal's name and bind the principal to pay for them, and may exercise property powers to the extent the agent deems necessary to pay health care costs, without personal liability (755 ILCS 45/4-10(c)(3)). The trustee and the financial agent, in turn, have no authority over medical decisions, which is why a plan needs all of these documents and not just the trust.

Neither state lets a provider or insurer force the choice. Illinois makes it a Class A misdemeanor to require or prevent execution of a health care agency as a condition of insuring or providing any type of health care services (755 ILCS 45/4-9(c)), and the Living Will Act bars any provider or insurer from requiring a declaration as a condition of being insured or receiving services (755 ILCS 35/9(c)). Ohio provides that no physician, facility, provider, insurer or plan shall require an individual to create or refrain from creating a durable power of attorney for health care as a condition of being admitted, treated, insured or receiving benefits (Ohio Rev. Code 1337.16(A)). Providers keep a conscience right in both states, paired with a duty to help the patient move: in Illinois a provider unwilling to comply with the agent's decision shall promptly inform the agent, who then arranges the transfer (755 ILCS 45/4-7(b)), and in Ohio a physician or facility that will not comply may not prevent or unreasonably delay the transfer of the principal to one that will (Ohio Rev. Code 1337.16(B)).

Which of these documents the site's plan includes

The names differ by state, and so does whether a separate living will is part of the package. In Illinois the plan's health care documents are a Power of Attorney for Health Care and, when your end-of-life instructions call for it, a Living Will Declaration. In Ohio they are a Durable Power of Attorney for Health Care and, on the same condition, a Living Will Declaration. Many states combine both functions in one form; the plan's document in those states is a single Advance Health Care Directive, or the state's own name for it, such as the Health Care Proxy and Living Will in New York or the Medical Power of Attorney and Directive to Physicians and Family or Surrogates in Texas. The living will is included only when the customer's end-of-life choice calls for it: a customer who asks that life be prolonged, or who leaves end-of-life decisions to the health care agent, does not receive a separate living will, because in states such as Illinois the living will form is a refusal of death delaying procedures and nothing else (755 ILCS 35/3(a)). For the two example states, the plan's signing instructions follow the statutes described above: in Illinois one adult witness for the power of attorney and two adult witnesses for the living will, and in Ohio two adult witnesses or a notary public for each document, with the eligibility rules printed on the form.